AS TO THE ADMISSIBILITY OF
Application No. 21361/93
by Pakize GÖNENGIL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 January 1993
by Pakize GÖNENGIL against Austria and registered under file
No. 21361/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 November 1993, and the observations in reply submitted by the
applicant on 29 September 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen. She is represented before
the Commission by Mr. Wilfried Ludwig Weh, a lawyer practising in
Bregenz.
The applicant was convicted in administrative criminal
proceedings of not having had a valid visa during the period from
22 February 1989 to 19 September 1989. A penal order was issued on
22 November 1990 by the Feldkirch District Authority by which the
applicant was fined AS 700.00 plus costs, with 42 hours' detention in
default.
The applicant's appeal to the Vorarlberg Security Directorate was
rejected on 26 June 1991.
On 25 November 1991 the Constitutional Court rejected the
applicant's constitutional complaint, and on 9 July 1992 the
Administrative Court dismissed the applicant's administrative
complaint. The Administrative Court was not required to deal with the
applicant's complaint that any proceedings should have been against the
applicant's husband rather than against herself, but nevertheless noted
that the cases on which the applicant relied related to different
factual situations.
COMPLAINTS
The applicant alleges a violation of Article 6 of the Convention
in that her conviction in administrative criminal proceedings was not
accompanied by the requisite procedural guarantees, in particular that
the Administrative Court was not a "tribunal" within the meaning of
Article 6 para. 1 of the Convention
She also alleges a violation of Articles 5, 6 and 7 of the
Convention taken together. She considers it incompatible with the
Convention that a person should be convicted for behaviour in
circumstances where he cannot ascertain, even with appropriate advice,
that that behaviour is unlawful.
PROCEEDINGS BEFORE THE COMMISSION
The Government's observations were submitted on 25 November 1993
and the applicant's observations in reply on 29 September 1994.
THE LAW
1. The applicant alleges a violation of Articles 5, 6 and 7
(Art. 5, 6, 7) of the Convention. She considers that there was in
Vorarlberg at the relevant time a practice that administrative
proceedings in respect of visa irregularities would be taken against
the husbands of Turkish women, rather than against the women
themselves. She concludes from this that she was convicted of an
offence which, in domestic practice at the time, was not applicable to
her.
Article 7 (Art. 7) of the Convention provides, so far as
relevant, as follows.
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed ..."
The Government consider that no such practice as alleged by the
applicant existed in Vorarlberg or elsewhere in Austria. The applicant
has submitted a series of decisions which, she says, confirm the
practice. The decisions refer to cases in which the Austrian
authorities accepted that minors should not be visited with
administrative criminal liability as they were still under parental
control, and to cases in which an immigrant was convicted of
facilitating a contravention of administrative criminal law by
permitting his wife and/or children to stay in Austria without a visa.
None of them refers, even indirectly, to husbands being responsible,
to the exoneration of their wives, for administrative offences.
The Commission finds that the applicant has produced no material
to confirm the existence of the practice she alleges. It therefore
finds no substance in her arguments in this connection.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 6
(Art. 6) of the Convention. The Government consider that the case does
not disclose a violation of Article 6 (Art. 6).
The Commission has had regard to the facts of this complaint, to
the parties' observations, and to the case-law of the European Court
of Human Rights. It finds that this part of the case raises questions
under the Convention which cannot at this stage be rejected as being
manifestly ill-founded, and which require to be determined on the
merits. No other ground of inadmissibility has been established.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the complaint that the applicant was
convicted of an offence which did not exist, and
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without
prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy